A “view” from the Court: Some morning Joe before Digital Day

Posted Wed, June 25th, 2014 9:35 pm by Mark Walsh

It will turn out to be technology day at the Supreme Court today. But first, our morning coffee.

There was a discussion in the opinions in Loughrin v. United Stateson Monday about purchasing convenience-store coffee. (We’ll spare you the specifics of the nuanced point of the exchange.) But Justice Antonin Scalia seemed to suggest in his dissent that he likes the coffee from Sheetz stores, but that 7-Eleven will do if it is “the first convenience store I pass on my way to work.” Justice Elena Kagan, the author of the majority opinion in the bank fraud case, also mentioned the two chains in her response to Scalia’s point.

To get back to the courtroom, several Justices regularly enjoy their morning coffee or other preferred beverages during court sessions. This morning, just before the start of the session, an aide brings out a silver no-spill mug to Justice Samuel A. Alito Jr.’s place on the bench. (Later, as on other days, Justice Alito sipped out of a regular mug, meaning that he is perhaps pouring his beverage of choice from the larger silver mug.)

Justice Scalia has a no-spill mug at his spot, too, but of course there is no way for us to know whether it contains Sheetz or 7-Eleven coffee or some other beverage.

By the end of court this morning, the people who will really need strong coffee are the members of the Solicitor General’s office filling the seats at the front of the section reserved for attorneys.

The justices take the bench at 10 a.m., and Chief Justice John G. Roberts Jr. announces that Justice Stephen G. Breyer will announce the opinion of the Court in two cases.

The first is Fifth Third Bancorp.v. Dudenhoeffer, which Breyer immediately says “is a pretty technical case” about ESOPs [employee stock ownership plans] and ERISA [the Employee Retirement Income Security Act of 1974].

He appears to be winging his summary at first, before returning to the text of his hand-down statement. He fairly quickly makes it to the Court’s unanimous conclusion that ESOP fiduciaries are not entitled to any special presumption of prudence.

Breyer’s second case is American Broadcasting Companies v. Aereo, Inc. It was argued in April, as were the Fourth Amendment cases on warrantless police searches of arrestees’ cellphones. In the wake of those arguments, the Justices’ comfort with and understanding of modern technology was, fairly or unfairly, heavily scrutinized by bloggers.

If the Court is at all determined to prove to the world that it is comfortable with the march of technology, it is initially putting forth a Justice who referred at oral argument in the Aereo case to “phonograph record stores” and noted during argument in one of the cellphone cases that he doesn’t know what kind of mobile phone he has and that “I can never get into it because of the password.”

But, belying the criticisms of the blogosphere, Breyer was quite comfortable at the Aereo argument with the ins and outs of copyright law, and he even displayed a strong understanding of cloud storage and similar issues.

Delivering the six-to-three opinion in Aereo today, Justice Breyer will be up to the task as he explains the upstart company’s business model of using tiny antennas to offer subscribers over-the-air television signals without paying any license fees to broadcasters.

He summarizes Aereo’s arguments as to why the company does not believe it is transmitting a performance.

“Hmmm,” he says skeptically. “We believe this argument makes too fine a point.” When Congress amended the Copyright Act of 1976, it did so to sweep in what was known as CATV—community antenna providers who offered broadcast signals to areas with poor reception.

“Aereo communicates the same contemporaneously perceptible images and sound of the networks’ copyrighted works to a large number of people,” Breyer says. “And these people are unrelated and unknown to each other. Accordingly, we conclude that Aereo transmits a performance of these works ‘to the public.’”

Breyer points out that the opinion goes into more detail about how the Court does not address such new developments as “cloud computing, remote storage DVR’s, and other novel matters not now before us.”

By this point, I am ready to put Justice Breyer on my speed dial to talk me through the next time my cable box is on the fritz.

During Breyer’s delivery, Justice Sonia Sotomayor at one point had turned to a marshal’s aide seated behind the justices and made a request. For a law book, perhaps? Just as Breyer wraps up, the aide emerges from the curtains and hands Sotomayor what she apparently requested—a coffee mug filled with some beverage.

Chief Justice Roberts indicates that he has the Court’s opinion in Riley v. California and UnitedStates v. Wurie. Though the cellphone cases were argued separately, he makes clear that there is just one set of opinions, under the Riley caption.

Roberts did not escape criticism from the technorati over the arguments in these cases, especially after he was dubious during the Wurie argument that some law-abiding people carry more than cellphone.

In the Riley decision, which is unanimous but with Justice Alito concurring in part and concurring in the judgment, the Chief Justice makes clear almost right away that the Court is ruling that the police were required to get warrants to conduct the searches that occurred in these cases.

It only gets more sweeping from there.

“There is really no comparison between physical objects and the data on a person’s cellphone,” Roberts says in dismissing prosecutors’ efforts to bring cellphone searches under the sweep of United States v. Robinson, the 1973 case that upheld the warrantless search of an arrestee’s cigarette pack.

“We decline to extend” the theory behind the “search of a physical item to the digital data on a cellphone,” he says.

“Then there are apps,” he continues. The average smart phone user has installed 33 apps, he says, mentioning a few from a longer list in his written opinion, such as separate apps for Democratic Party news and Republican Party news.

He acknowledges that “it is not only the law-abiding who have discovered the benefits of cellphones” and that “privacy comes at a cost” to law enforcement.

He concludes with the idea that the Fourth Amendment was the founding generation’s answer to the “despised” general warrants and writs of assistance that allowed British officers to rummage through homes in search of criminal activity.

“Opposition to such searches was in fact one of the driving forces behind the [American] Revolution itself,” the Chief Justice says. “In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he would later write that ‘every man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.’ According to Adams, Otis’s speech was ‘the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.’”

“Our answer” to the question of what the police must to do to search a cellphone incident to arrest “is simple,” Roberts says. “Get a warrant.”

Roberts signals the end of the day’s session, as usual, by nodding to Marshal Pamela Talkin, who gavels the day to a close.

It takes a moment to realize that the dog didn’t bark: Roberts did not offer the traditional announcement on the penultimate day of court that the next session would be the last. So it seems clear there are at least two, and most likely only two, more opinion days—Thursday (as already announced) and one more.

As the justices leave the bench, Justice Scalia grabs his coffee mug and takes it with him through the curtains.

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.